' FAROOQ ALI CHANNA , J.---Applicant Muhammad Naseer alias Doctor has filed Criminal Jail Appeal No,258 of 2009 and Criminal Jail Appeal No, 250 of 2009, appellant Muhammad Siddique has filed Criminal Jail Appeal No,249 of 2009 against the judgment dated 2-9-2009 whereas appellant Saifal has filed Criminal Appeal No,434 of 2010 against the judgment dated 4-9-2010, all the judgments were passed in Sessions Case No,314 of 2008 culminated F.I.R. No,46 of 2008, Police Station Boat Basin, under sections 395, 109, P.P.C. Whereby learned Ind Additional District and Sessions Judge, Karachi (South) (hereinafter referred to as trial Court) convicted the appellants under section 395, P.P.C. And sentenced them to undergo R.I. For 10 years and to pay fine of Rs,50,000 each, in default thereof to undergo S.I for 3 months more. The appellants were extended the benefit under section 382-B, Cr.P.C.
2. Succinctly the facts of the case are that on 16-2-2008 complainant Gulbahar, the servant of Imtiaz Ahmed lodged F.I.R. Stating therein that during the night of incident three persons armed with weapons entered the house, over powered him and by show of force took him to the room of P.W. Imtiaz Ahmed, the owner of bungalow, meanwhile two other persons also entered the Bungalow, one of them remained outside the kitchen and the other inside the kitchen. The culprits thereafter looted one pistol .9 mm, 2 ladies wrist watches, cash Rs,45,000, mobile phones, some sets of gold ornaments, 2 diamond rings, they also snatched . Gun from the gunman and ran away.
The accused were wearing shalwar kamiz and speaking in Urdu. He and P.W. Imtiaz Ahmed had seen the culprits properly, they can identify them if culprits are shown to them. During investigation the I.O. Arrested appellant Muhammad Naseer alias Doctor and Muhammad Siddique along with acquitted accused, recovered some robbed properties at the time of their arrest and further recovery was made on their pointation. After completing investigation the I.O. Submitted the challan showing appellant Saifal as absconder who after the judgment dated 2-9-2009 passed against appellants Muhammad Naseer alias Doctor and Siddique was arrested, and after trial was convicted vide Judgment dated 4-9-2010 which are impugned in this appeal.
3. Learned Counsel for the appellants Muhammad Naseer alias Doctor and Muhammad Siddique have contended that the case is false and fabricated, the complainant and other P. Ws. Have involved the appellants falsely at the instance of Police. Learned counsel have further contended that the identification parade of appellant Muhammad Naseer and Muhammad Siddique had taken place in violation of procedure laid down by the honourable apex Courts causing the prosecution case doubtful. They have further contended that the recovery of stolen property at the time of arrest was also doubtful as no witness of the locality was cited in terms of section 103, Cr.P.C. Further recovery on the pointation of appellants Muhammad Siddique and Muhammad Naseer alias Doctor was allegedly effected from a thickly-populated area after 13 days of their arrest and more than 3 months after the incident, such recovery has no sanctity in the eye of Law therefore has no evidentiary value. Learned Counsel have further contended that as per prosecution case the place of recovery was the house of appellant but nothing has come on record that whether the inmates were available in the house, if not, how they entered a locked house. Learned Counsel have further contended that as per prosecution case the culprits took the complainant towards. The room of Imtiaz Ahmed after breaking the doors of kitchen and room but mashirnama of wardat is silent about the above version of Prosecution. Learned Counsel have relied upon the cases reported as PLD 2001 Supreme Court of Pakistan 546, PLD 1981 Supreme Court of Pakistan 142, 1995 SCM R 127, 2011 SCM R 527, 2011 SCM R 646 and NLR Cr.
967.
4. Conversely Mr. Syed Shafqat Ali Shah Masoomi, learned Counsel for complainant assisting the Prosecution has argued that the appellants were seen properly and identified before the Judicial Magistrate during identification parade and before trial Court during trial by the complainant and eye-witness P.W. Imtiaz Ahmed, who had no enmity or adverse motive to implicate the appellants falsely. Learned Counsel has further contended that the appellants remained inside the house for 3/4 hours with complainant and other witness as such there was no mistake in their identification.
Learned Counsel has further contended that the identification test of appellant Muhammad Naseer alias Doctor and Muhammad Siddique had taken in proper manner however if there was any slight discrepancy, the same would not be fatal to the prosecution case. Learned Counsel has further contended that valuable robbed articles were recovered from the possession of appellants and recovery witnesses have fully supported the Prosecution as such there was sufficient ocular evidence corroborated by recovery of robbed property and circumstantial evidence to prove the prosecution case without any shadow of reasonable doubt. Learned Counsel has relied upon the cases reported as PLD 1962 (West Pakistan. Karachi 288 relevant page 293), PCr.LJ 1975 (Lahore 1201), SCM R 1984 (1382), AIR (2) 1945 (Lahore 27) and SCMR 1990 (172 read with 1275).
5. Learned Assistant Prosecutor-General has adopted the arguments advanced by learned Counsel for the complainant, however added that minor contradictions in the evidence of prosecution witnesses will not cause damage to the prosecution case.
6. The prosecution in order to substantiate the charge against the appellant Muhammad Naseer alias Doctor and Muhammad Siddique has examined complainant Gulbahar and P.W. Imtiaz Ahmed, the eyewitnesses of occurrence; they both in their evidence before the trial Court have supported the prosecution and have given the details of incident. The complainant has admitted the contents of F.I.R. And deposed that during the night of incident three persons entered his servant quarter and by show of force broke open the door of kitchen and took him towards the room of Imtiaz Ahmed, they broke open the door of the room committed robbery. The complainant has further deposed that two other culprits also entered inside the bungalow; one of them stood outside the kitchen and other entered inside the kitchen. The complainant stated that he had identified the appellants in identification test held before the Judicial Magistrate so also before trial Court during his evidence. P.W. Imtiaz Ahmed has corroborated the evidence of complainant and has narrated the same facts disclosed by the complainant in the F.I.R. And in his evidence. This witness also identified the appellants before the trial Court. Both the witnesses were cross- examined at length but nothing had come on record favourable to appellants.
7. The contradictions in the evidence of above witnesses pointed out by learned counsel for the appellants being minor in nature are not fatal to prosecution case; on the contrary such minor contradictions are natural and have come in evidence due to passage of time between the occurrence of the incident and recording of evidence of prosecution witnesses. The prosecution case is also supported by the identification of appellants, before Judicial Magistrate and recovery of robbed articles i.e, gold ornaments on the pointation of appellants and rest of the property at the time of their arrest. Prosecution in support of identification parade and recovery of robbed property has examined the witnesses who have also supported the prosecution case. The discrepancies and legal defects in identification parade and in recovery of robbed property pointed out by learned Counsel of appellants, in view of direct evidence on the allegation of dacoity, carries no weight, and merely would be a corroborative piece of evidence, so any minor defect in identification parade or recovery of robbed property does not mean that the prosecution witnesses have not stated the truth; particularly when witnesses had no reason or motive to falsely implicate the appellants. Both the eye-witnesses being inmates of house where occurrence took place, their presence was natural and undisputed. The appellants had remained at the place of occurrence for considerable time as such mistake in their identification cannot be inferred. Besides above, the actual test of identification in criminal cases is before the trial Court at the time of recording the evidence of eye-witness.
8. Besides above, another strong piece of evidence against the appellants was the record of mobile Sims collected from the Mobilink Company during investigation. Per prosecution case, the Investigating Officer provided IMEI number of robbed mobile phone to Mobilink Company, who informed the Investigating Officer that three SIMs vis. 0300-8934530, 0300-2387450 and 0308- 2578199 were used in the said mobile after the incident, two SIMs were issued in the name of Muhammad Naseer Khan. On such information of Mobilink Company, the Investigating Officer remained in search of Muhammad Naseer Khan and on receiving credible information regarding the presence of Muhammad Naseer Khan along with his companions at Abdullah Shah Ghazi Chowrangi, arrested both the appellants and recovered some robbed articles. The prosecution also examined Atiqur Rehman, Co-Coordinator of Mobilink Company, who has supported the prosecution and produced the record of SIMs used in mobile phone robbed from the house of Imtiaz Khan. The record of mobile company and evidence of it's representative is admissible in terms of Article 164 of Qanun-e-Shahadat Order which provides that the court may allow the production of any evidence that may have become available because of modern devices and techniques.
9. For the reasons discussed above I have come to the conclusion that the Prosecution has succeeded to establish the charge of decoity against the appellants Muhammad Naseer alias Doctor and Muhammad Siddique without any shadow of doubt and the impugned judgment dated 2-9-2009 is not the result of misreading or non-reading of evidence and is based upon cogent reasons requires no interference. Consequently the conviction and sentence of above said appellants is maintained.
10. The case against appellant Saifal was that his name was disclosed by co-accused Muhammad Naseer alias Doctor at the time of his arrest, the I.O. Made efforts to arrest him but could not succeed therefore submitted the challan showing him as an absconder however he was arrested in another Crime No,454 of 2009, Police Station Boat Basin under section 13-D Arms Ordinance by ASI Abdul Ghaffar who made an application to trial Court for production orders of appellant Saifal and his trial in Sessions case No,314 of 2008. The Prosecution in order to substantiate the charge against appellant Saifal has examined the complainant Gulbahar who during evidence before trial Court reiterated same facts already deposed in his earlier evidence, however he identified appellant Saifal to be the same culprit.
11. Learned Counsel for the appellant Saifal has contended that there was no evidence against the appellant, he was shown absconder in challan sheet on the basis of statement made by co- accused Muhammad Naseer alias Doctor before the Investigating Officer which evidence was not admissible under Articles 38 and 39 of Qanun-e-Shahadat Order 1984 and nothing was recovered from him. Regarding the evidence of complainant, learned Counsel has contended that the same was recorded about 2-1/2 years after the incident therefore it was not possible to identify the appellant after such delay, particularly when no features and descriptions of appellant Saifal were given in the F.I.R.
12. Learned Assistant Prosecutor-General, Sindh has contended that the above appellant Saifal was implicated by co-accused Muhammad Naseer alias Doctor and identified by the complainant before the trial Court. The complainant has no enmity or reason to implicate appellant Saifal if he was innocent as such the delay in identification of appellant by the complainant is immaterial.
Learned APG has also contended that minor contradictions will not discard the evidence of eye- witness.
13. Per prosecution co-accused Muhammad Naseer alias Doctor made statement before the Investigating Officer disclosing the name of _appellant Saifal to be one of the accused, the said statement is not admissible under Articles 38 and 39 of Qanun-e-Shahadat Order as such it has no sanctity in the eye of law. The other evidence is of complainant Gulbahar, who has identified the appellant Saifal before the trial Court to be the same culprit who at the time of incident was standing in kitchen. However, during cross-examination he has admitted that the culprit who was standing in kitchen was of medium height whereas the accused identified by him in Court was of 6 feet height. Such discrepancy in the height of appellant Saifal and his identification by the complainant after the lapse of more than 2-1/4 years creates some doubt in his identity, as such the case of prosecution against the appellant Saifal is not free from doubt. The honourable Supreme Court in a case of (Nazir Ahmed v. Muhammad Iqbal) 2011 SCM R 527 has laid down that the "identification in Court" after considerable delay i.e, after the incident, of a person produced cannot satisfy the requirement of law provided in identification of a culprit. The honourable Supreme Court has also referred to Asghar Ali's case (1992 SCM R 2088) and Sohail Abbas's case PLD 2011 Supreme Court of Pakistan 546.
14. For the reasons stated above I have come to the conclusion that the prosecution has failed to establish the charge against the appellant Saifal without shadow of reasonable doubt, therefore by extending him benefit of doubt I set aside the conviction and sentence awarded through impugned judgment dated 4th September, 2010 and acquit the appellant Saifal from the charge of section 395, P.P.C. Office is directed to issue release, writ directing the Superintendent Central Prison to release the appellant Saifal forthwith, if not required in any other case.
15. As a result of above discussions and findings, the Criminal Appeal No, 250 of 2009, Criminal Jail Appeal 258 of 2009 filed by appellant Muhammad Naseer Khan alias Doctor and Criminal Jail Appeal No,249 of 2009 filed by appellant Muhammad Siddique are dismissed while the Criminal Appeal No,434 of 2010 filed by appellant Saifal is allowed.